Cards (25)

  • Partial defence
    reduces sentence, not a full acquittal, a reduction to the charge of manslaughter
  • What does it replace?
    Defence of provocation
  • Where can it be found?
    S54 of CJA 2009
  • Definition in S54?
    Where a person kills or is party to killing, D is not to be convicted of murder if:
    • the killing was due to loss of control
    • which had a qualifying trigger
    • a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstance of D, might not have reacted in the same or in a similar way to D
    • it doesn't matter whether or not the loss of control was sudden
  • S55 the 'qualifying trigger'
    A loss of self-control can come from any of:
    • D's fear of serious violence from V against D or another identified person
    • D's response to things said or done or said (or both) which were extremely grave and D had a justifiable sense of being seriously wronged
    • a combination of the 2 above
  • When would D's fear of serious violence be disregarded?
    If they started it as an excuse to kill
  • What type of 'thing said or done' would not be acceptable as a qualifying trigger?
    Sexual infidelity
  • R v McGrory 2013?

    Definition of loss of control established 'Self control is the same thing as self restraint. It's a persons ability to resist an impulse or an urge to act. Loss of control is something more than mere anger. A defendant loses his self control if his ability to restrain himself was so overwhelmed that he could not resist the impulse to attack. In other words, he was no longer master of his actions.' This shows it must be a total loss of control, not just mere anger, to the point you didn't realise what you were doing
  • R v Jewell 2014
    D was perceived he was being intimidated by his workers eg slashing tires, claiming V said he had 2 days left which led him to not sleep and act as if in a dream when shooting V. This was insufficient evidence, proving the problem of how hard it is to rpove the moment you lost control
  • If it is shown that D didn't have a total (not partial) loss of control, what doesn't need to be considered? If it is established, does this change?
    If D didn't have a total loss of control there's no need to consider qualifying triggers. If it's established then the qualifying trigger becomes relevant
  • What type of triggers are there?
    • Fear trigger- fear of serious violence
    • Anger trigger- things said or done which were extremely grave and caused a justifiable sense of being seriously wronged
  • The fear trigger
    R v Ward 2012 the loss of control defence was allowed because V had seriously assaulted his brother at a house party so he feared serious violence towards another person (his brother) which caused him to lose control and cause V brain damage
  • The anger trigger relies on what test?
    An objective test which means would a person of the same sex and age have done the same thing?
  • Justifiable sense of being wronged cases?
    Zebedee 2012 - V repeatedly soiled himself because he was 94 and suffered Alzheimer's but because D saw him rarely it was not justifiable that he felt seriously wronged as a reasonable person wouldn't have done that. Doughty 1985 - it was ruled that the defence of provocation cannot be founded on the perfectly natural episodes of a baby's crying. On appeal it was stated it was possible that the continuous crying of a baby could be used as provocation.
  • The Anger Trigger can not be due to sexual infidelity but..
    R v Clinton - D didn't achieve loss of control because the words related to sexual infidelity and the remaining factors weren't enough to cause the appellant to have a justifiable sense of being wronged. They found him guilty but on appeal whilst sexual infidelity cannot be relied upon on its own as a qualifying trigger, its existence doesn't prevent reliance on the defence where there exist other qualifying triggers. If there's other qualifying factors sexual infidelity can be taken into account.
  • R v Clinton 2012 - case facts

    D and his wife suffered from depression. The wife revealed she was having an affair and they agreed to meet to tell the children they were separating. D arranged the children to be elsewhere at the time she was due to come and he was heavily intoxicated. He killed her and took photos of her naked body and sent them to her lover. He argued he'd lost control due to: she told him she had sexual relations with 5 men and was describing in detail, she had laughed and taunted him about a suicide website and she'd told him she no longer wanted the children.
  • The 'reasonable person test'
    A person of D's sex and age with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
  • R v Rejmanski 2017
    PTSD was considered a relevant circumstance (though not in the case) but it couldn't be included as a characteristic of a reasonable person but D could rely on DR
  • The complication of intoxication
    Voluntary intoxication is not to be considered as either loss of control or diminished responsibility unless D has a severe drug or alcohol dependency was taunted by someone about that dependency, then the addiction might be taken into account as a special circumstance of D
  • Who judges the reasonable person test?
    The jury
  • Does it matter if the loss of control is sudden or not?
    No
  • The 'circumstances of D' in in objective test?
    Being where they are, doing what they're doing. In reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self restraint. Not anything that may affect their judgment (mental health) as they can run DR for that.
  • 'D's fear of serious violence'
    What is 'serious'? Is it problematic that it doesn't have to be against D?
  • Ahluwalia case facts
    The appellant suffered abuse from her husband for years. After one violent evening, she went to bed thinking about her husband’s behaviour and couldn't sleep. She went downstairs, poured petrol into a bucket, lit a candle, went to her husband’s bedroom and set it on fire. He died from his injuries. Ahluwalia pleaded manslaughter on grounds that she didn't intend to kill him, only to inflict pain. She also pleaded provocation on grounds of her treatment. D was convicted of murder and appealed.
  • Ahluwalia verdict
    The definition of provocation in R v Duffy was changed for cases of abused wives where the harmful act is often a result of a “slowburn” reaction, rather than immediate loss of self-control. The longer the delayed reaction of provocation and the stronger the evidence of deliberation, the defence becomes less likely to succeed. There was a medical report showing the defendant was suffering from endogenous depression at the time. It was overlooked and the appellant was not consulted as to the possibility of investigating it further. Appeal was allowed and a retrial ordered.